Tuesday, November 29, 2011

The Rt. Rev. Dorsey Henderson, President of the Disciplinary Board for Bishops, has released a statement announcing that the eighteen-person Board could not muster a majority to charge the Rt. Rev. Mark Lawrence of South Carolina with "abandonment of the Communion of this Church." Thus ends a clumsy attempt to take seriously the allegations of "abandonment" lodged by dissidents from Bishop Lawrence's own Diocese, who tried to turn his steadfast insistence on the central importance of Holy Scripture to the life of the Church into a case for his abandonment of it.

It is also significant that Bishop Lawrence has repeatedly stated that he does not intend to lead the diocese out of The Episcopal Church—that he only seeks a safe place within the Church to live the Christian faith as that diocese perceives it. I speak for myself only at this point, that I presently take the Bishop at his word, and hope that the safety he seeks for the apparent majority in his diocese within the larger Church will become the model for safety—a “safe place”— for those under his episcopal care who do not agree with the actions of South Carolina’s convention and/or his position on some of the issues of the Church.

Just what is this talk of a "safe" place for those dissidents, Bishop Henderson? Did you intend to add to their already neurotic fears and anxieties? I will wager that they are far safer in the Diocese of South Carolina, which is led by an actual Christian bishop who believes in Jesus' command to "love one another as I have loved you", than they would be under a bishop who believes instead in the Old Testament adage of "an eye for an eye, a tooth for a tooth." (I refer to certain bishops who shall go unnamed, but who have signaled their vengeful intentions with words such as: "There's a new sheriff in town.")

The real question is just this: is Bishop Lawrence truly "safe" now, Bishop Henderson -- or will you be shortly sending him notification of new charges brought against him on account of his having authorized quitclaim deeds to be delivered to every parish in his Diocese? Those deeds renounce any and all claims (such as claims of any trust interest pursuant to the Dennis Canon) to that parish's property on behalf of the Diocese, and hence all claims on behalf of the Episcopal Church itself, since the latter entity can act locally only through one of its dioceses.

There persists, among the dissidents in South Carolina, and among similar canonical ignorami scattered throughout other dioceses and the Episcopal blogosphere, a notion that the South Carolina Supreme Court did not mean what it said in its decision in the All Saints Waccamaw case. Here is one such view, chosen at random from many such offered on the Web for public consumption:

Three years ago {Ed. note: Actually, it was two years ago, but who cares about being accurate here?}, the state's Supreme Court issued a ruling in the case of All Saints, Pawleys Island that seemed to suggest that the Episcopal Church -- and any other similarly structured church organization like the Presbyterians and Methodists -- does not have a legal interest in parish property held in trust by the Episcopal Church in the Diocese of South Carolina. {Ed. note: How screwed up can you make things? The parish property was "held in trust by the Episcopal Church"? Didn't you mean to say that in your view, it was "held in trust for the Episcopal Church in the DSC?}

All Saint's was trying to break away from the Episcopal Church and join the Anglican Province of Rwanda, which it eventually was allowed to do. {Ed. note:I'm sure the congregation of All Saints Pawley's Island must be eternally grateful that some unspecified person or body "allowed" them to join the Province of Rwanda, but that implies they had to ask someone for permission, when the Court held precisely that they did not. Their amendments to their own articles and bylaws were fully sufficient, under South Carolina law, to accomplish that result -- without anyone else's "permission."}

Legal authorities and those familiar with the Court's thinking {Ed. note: You mean that the Court thought other things than what it so plainly said in its opinion, and that one has to be "familiar with its thinking" in order to understand what it really meant? Good grief.}say that the ruling was specific to the unique nature of All Saint's case. However, the Diocese of South Carolina, under Bishop Lawrence, disagrees.

Critical to the Court's ruling in the All Saints' case was a "quitclaim" deed executed by the Diocese in 1903 relinquishing any legal interest it might have to All Saints' property.

The existence of that deed tipped the Court's view of property ownership in favor of All Saints' over that of the Episcopal Church and the Diocese.

Not so fast. That 1903 Quitclaim Deed was certainly cited in the Court's decision as one factor in the ruling confirming that the Diocese of South Carolina had released all claims to All Saints Waccamaw's property at that time, but what about the 106 years following? The only hook on which the Episcopal Church and the Diocese (then under Bishop Lawrence's predecessor, Bishop Salmon) could try to hang their claims of a trust interest was the enactment of the Dennis Canon by the national Church in 1979, and of a counterpart by the Diocese two years later.

Thus, regardless of the 1903 Quitclaim Deed, if the Dennis Canon or its diocesan counterpart had been sufficient to create a new trust interest in All Saints' property from 1979-1981 and forward, then it would have not mattered what the South Carolina Supreme Court found with regard to the 1903 Deed. Instead, however, the Court made short shrift of the national Church's and the Diocese's attempts to declare a trust interest in property which they never owned:

Furthermore, we hold that neither the 2000 Notice [of claim to a trust interest in the property, recorded by the Diocese] nor the Dennis Canon has any legal effect on title to the All Saints congregation’s property. A trust “may be created by either declaration of trust or by transfer of property….” Dreher v. Dreher, 370 S.C. 75, 80, 634 S.E.2d 646, 648 (2006). It is an axiomatic principle of law that a person or entity must hold title to property in order to declare that it is held in trust for the benefit of another or transfer legal title to one person for the benefit of another. The Diocese did not, at the time it recorded the 2000 Notice, have any interest in the congregation’s property. Therefore, the recordation of the 2000 Notice could not have created a trust over the property.

For the aforementioned reasons, we hold that title to the property at issue is held by All Saints Parish, Waccamaw, Inc., the Dennis Canons had no legal effect on the title to the congregation’s property, and the 2000 Notice should be removed from the Georgetown County records.

(Emphasis added. The Court speaks of the "Dennis Canons" in the plural, because both the Diocese and the national Church had enacted similar provisions in an attempt to create a trust interest.)

What is so hard to understand here? The 1903 Quitclaim Deed was not at all the "tipping point" which decided the case in the parish's favor; nor was it a "unique" factor which would enable a later court to distinguish the All Saints case from any other attempt to invoke the Dennis Canon (or its former diocesan equivalent). The Court's language could not have been more plain: "The Dennis Canons had no legal effect on the title to the congregation’s property . . .". "No legal effect" means "no legal effect." The two Dennis Canons, whether singly or together, were incapable of creating a legal trust interest which could be recognized by any South Carolina court, because they did not satisfy the basic requirement of having the consent of the property's owner to the creation of such a trust, evidenced by its signature on a written trust instrument spelling out its terms.

One of the things I have noticed in writing this blog is that left-leaning, liberal Episcopalians simply will not accept a rule, decision, canon or other pronouncement of law which they do not like. They will invent all sorts of reasons or rationales for evading the plain effect and language of the rule, decision, canon or other pronouncement of law, or for treating it as only a "special case," with no precedential value whatsoever.

Thus the Presiding Bishop found it "inconvenient" to allow the three senior bishops in the Church to have a "veto" over her ability to inhibit a bishop charged with "abandonment of communion", and so she simply ignored that limitation and went ahead and inhibited Bishops Cox and Duncan anyway. Or again, she found it "inconvenient" to require a written renunciation of his orders to get rid of Bishop Iker, so she treated one of his public statements as such a renunciation, and had him deposed on that basis. Likewise, it was most inconvenient to have to muster up a majority vote of "the whole number of bishops entitled to vote in the House of Bishops", since that language included retired ("resigned") bishops who also constitutionally have a vote in the House, and retired bishops hardly ever attend its meetings. So she simply declared that the inconvenient language meant something else, and got her wholly neutral and unbiased Chancellor to issue a ruling backing her up: from now on, a "majority of the whole number" meant only a majority of those who bothered to show up and vote.

The All Saints decision was most certainly a setback for the Dennis Canon in South Carolina. But Episcopalians everywhere must now face the fact: the Dennis Canon was completely ineffective to work its usual magic in that State, because that State has a Court which actually could apply the law of trusts, and of how one is properly created. Just because courts in other States have given the Episcopal Church a pass on its Dennis Canon is no reason to expect such special treatment everywhere. South Carolina, Louisiana, and (soon, I hope) Indiana are States which respect the traditional law of trust creation, and hence in which the Dennis Canon or its equivalents will have "no legal effect."

The dissident Episcopalians are thus blowing smoke when they claim that Bishop Lawrence and the Diocese did something un-Episcopalian in issuing quit-claim deeds to each and every parish. What Bishop Lawrence and his Diocese did was simply following the law as declared by South Carolina's highest State court -- and if to follow the law is un-Episcopalian, well -- there you have it, don't you? To be Episcopalian (at least, to be a member of the South Carolina Episcopalians group) is to ignore what the law plainly says, and to fault and try to drag down others for actually following it (and thereby disagreeing with you).

Accordingly, Bishop Henderson, your warning to Bishop Lawrence is utterly misguided. No one in South Carolina has anything to fear from a Diocese or its Bishop who scrupulously follows the law -- both civil and scriptural. It is precisely the ones who will not follow the law who make the place unsafe for law-abiders.

Monday, November 28, 2011

Let me say at the outset that I began this blog in 2008 because I believed that there were things going on in my Church -- the Episcopal Church (USA), of which I had been a faithful member from baptism -- which required broader attention from those potentially most affected. Specifically, I believed that events ever since 2003 needed attention from those lay people in the Church who might not be able to interpret the legal niceties being urged in the various court and disciplinary proceedings which had been brought in the Church's name up to that time, but who could, as traditional Episcopalians, appreciate that not all of the legal positions being taken by their Church were, shall we say, "kosher".

Ever since my first post, I have focused on the constitutional and canonical violations by those at the head of the Church -- generally the steps they took to remove from the Church's ministry those with whom the leadership disagreed on matters such as same-sex marriage, and to alienate the Church from the vast majority of the Anglican Communion. If you are an Episcopalian, I ask that you put all of the hype which you may have read about the Episcopal Church (USA, that is) being "in the forefront" of the movement to recognize same-sex "marriages" into the context of what I shall now relate.

Others have sketched the history by which gay and lesbian activists gradually increased their representation in the deliberative bodies of the Church, beginning in the 1970s and increasing steadily until General Convention 2003. At that Convention, the same-sex activists achieved their first significant advance with the confirmation, in both the House of Bishops and the House of Deputies, of New Hampshire's election of an openly gay man, who had divorced his wife and left his children to partner with another man, as their bishop.

Yet in 2003, it still was not legal for newly elected Bishop V. Gene Robinson to "marry" his same-sex partner in the State of New Hampshire. Nor could such a "marriage" have been recognized within the Episcopal Church (USA). Its Book of Common Prayer, then as now, sets out on page 422 the rubrics for holy matrimony solemnized by the Church, which include this statement (bold emphasis added):

Christian marriage is a solemn and public covenant between a man and a woman in the presence of God. In the Episcopal Church it is required that one, at least, of the parties must be a baptized Christian; that the ceremony be attested by at least two witnesses; and that the marriage conform to the laws of the State and the canons of this Church.

In conformity to this rubric, Canon I.18.2 of the Episcopal Church (USA) has since 1972 contained language to this effect (emphasis again added):

Sec. 2. Before solemnizing a marriage the Member of the Clergy shall have ascertained:. . .(b) That both parties understand that Holy Matrimony is a physical and spiritual union of a man and a woman, entered into within the community of faith, by mutual consent of heart, mind, and will, and with intent that it be lifelong.

In addition, the current Canons require that every couple married in the Church sign a very specific statement beforehand, the text of which is set out as follows in Canon I.18.3, subparagraphs (e) through (g), with emphasis added as before:

Sec. 3. No Member of the Clergy of this Church shall solemnize any marriage unless the following procedures are complied with:

. . .

(d) The Member of the Clergy shall have required that the parties sign the following declaration:

(e) "We, A.B. and C.D., desiring to receive the blessing of Holy Matrimony in the Church, do solemnly declare that we hold marriage to be a lifelong union of husband and wife as it is set forth in the Book of Common Prayer.

(f) "We believe that the union of husband and wife, in heart, body, and mind, is intended by God for their mutual joy; for the help and comfort given one another in prosperity and adversity; and, when it is God's will, for the procreation of children and their nurture in the knowledge and love of the Lord.

(g) "And we do engage ourselves, so far as in us lies, to make our utmost effort to establish this relationship and to seek God's help thereto."

The latter (rubrics), by the way, outrank the canons of the Church. General Convention can vote to amend the Canons at any single session, but it can effect an amendment to the Book of Common Prayer only in the same manner that it can amend ECUSA's Constitution -- by passage of the amendment at two successive General Conventions, with referral in the interim to each of the Church's several dioceses for their consideration and approval.

Thus, same-sex marriage ceremonies in the Church could not be approved unless and until there was an amendment approved to the Book of Common Prayer. To my knowledge, no such proposal to amend the BCP rubrics has been proposed for GC 2012 in Indianapolis -- the only proposal of which I am aware is to establish rites for the blessings of same-sex civil unions (or "marriages", if that is what the law of the particular State involved recognizes). If none is properly proposed before the applicable deadlines for such legislation, then same-sex marriage ceremonies in the Episcopal Church (USA) could not be approved at least until GC 2018.

The foregoing paragraphs describe, to the best of my ability, the current state of the canon and liturgical law of the Episcopal Church (USA) with regard to "marriage" between persons of the same sex. Such "ceremonies" are neither recognized, nor allowed to be performed, within the authorized liturgies of the Church. It is once again a measure of the lawlessness that reigns at all levels of ECUSA (with the primary example having been long since established by the Presiding Bishop's repeated defiance of the Canons) to note that neither Bishop Shaw nor Bishop Bruno has been required to account, under the more flexible disciplinary canons which took effect last July 1, for their open and flagrant violations of the BCP rubrics, and the canons of the Church, as quoted above. (One can only wonder what kind of "certificate" Bishop Shaw required Dean Ragsdale and her lesbian partner to sign, before he "married" them, that was in complete accordance with Canon I.18.3 (d) quoted above.)

Because these openly acknowledged violations have not been, and will not be, prosecuted by the appropriate Church authorities, one may conclude only that a form of decay has commenced within its venerable halls, which is eroding the very structures designed and intended to hold the Church together as a Church. And a further conclusion thereby presents itself, as an inevitable corollary to the foregoing: those who currently are (mis)leading the Church in this respect must want such decay to have its inevitable effect, in order to hasten the day when the last Scripturally based barriers to officially recognized and sanctioned same-sex relationships will have been discarded as outmoded and anachronistic, and fit only for the scrap heap.

To this dismal picture (from the point of view of Church traditionalists) I am now constrained to add another dimension, which is just as dismaying. Let me begin by filling in some background.

In 1993, the Supreme Court of Hawaii decided the case of Baehr v. Miike, which signaled that a State must have a "compelling interest" in order to deny legitimacy to same-sex marriages. Fearing that a State court's recognition of same-sex marriages might force all other States to recognize such unions under the "Full Faith and Credit" clause of the U. S. Constitution, Congress reacted by enacting, with overwhelming majorities, the Defense of Marriage Act ("DOMA"), which President Clinton signed into law in 1996. This law, relying on the clause in the Constitution (Article IV, Section 1) which gives to Congress the ultimate power "by general Laws [to] prescribe the Manner in which such Acts, Records and Proceedings [of an individual State] shall be proved, and the Effect thereof [in another State]", defined marriage for all federal purposes as "a legal union between one man and one woman as husband and wife" (Section 3), and provided that no State "shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . , or a right or claim arising from such relationship" (Section 2).

Since its enactment in 1996, DOMA has been the subject of multiple challenges in various federal courts, which are recapitulated in detail in this article. Of particular interest to Episcopalians is the current case in Massachusetts of Gill v. Office of Personnel Management, which resulted in a judgment by the federal district court in Boston that Section 3 of DOMA was unconstitutional. This ruling is now on appeal to the federal Court of Appeals for the First Circuit, also situated in Boston.

After defending the constitutionality of Section 3 in lower courts, the Obama Justice Department, pursuant to instructions from President Obama himself, did an about-face on February 23, 2011, and notified the First Circuit Court of Appeals that it would no longer defend the constitutionality of Section 3 in the Gill v. Office of Personnel Management appeal. Since that notification, the House of Representatives (with its Republican majority) has voted to retain the counsel necessary to defend Section 3's constitutionality on appeal.

And there matters stood, while the various briefs on the appeal were being filed. But now comes word, via the public relations page of the law firm of Goodwin Procter -- the law firm of which the Presiding Bishop's Chancellor David Booth Beers is a member, along with her "Special Representative for Litigation" Mary Kostel -- that the firm, which previously acted as counsel for certain parties to the Gill case in an earlier lawsuit challenging the constitutionality of Massachusetts' marriage laws, has both filed as counsel, and signed in its separate capacity as an employer in its own right, an amicus curiae ("friend of the Court") brief in Gill which argues for the unconstitutionality of the definition of marriage as embodied in Section 3 of DOMA.

To sum up the current anomalies, as presented in this post:

1. The Episcopal Church (USA) currently defines marriage, both canonically and in its rubrics, as the "physical and spiritual union of a man and a woman."

2. There is no current measure proposed in the governing bodies of the Episcopal Church (USA) which would alter or amend its definition of "marriage" so as to incorporate therein the joining in "marriage" of two persons of the same sex.

3. Notwithstanding the Episcopal Church (USA)'s Book of Common Prayer and its associated Canons, certain clergy (including diocesan bishops) have performed, or have allowed to take place within their Diocese, rites of "holy matrimony" for same-sex marriages within the Episcopal Church's liturgy.

4. The resulting spectacle of lawlessness is undermining the Church from within.

5. Now comes word that the law firm of the Presiding Bishop's own Chancellor, and of her Special Assistant for Church Property Litigation, has gone on record as opposing the Church's own definition of marriage in the BCP and in its Canons.

6. Notwithstanding #5, the Episcopal Church continues to employ both Goodwin Procter, the Chancellor, and the Special Assistant to the Presiding Bishop, as its counsel to litigate against departed parishes and dioceses who are opposed to the Church's apostasy, among other things, concerning Christian marriage.

This is both, as my title indicates, "rot from without and decay from within." The Church is actively subsidizing and promoting the former, while taking no steps to prevent the latter.

In consequence of the foregoing, we have a Church which is speaking with a forked tongue, or out of both sides of its mouth. A Church cannot uphold traditional teachings with regard to Christian marriage, on the one hand, and then work actively to undermine those same teachings in the secular arena, on the other hand. Still less can it employ as counsel those who are hopelessly conflicted with regard to the Church's traditional teachings, and who actively deny in the secular arena that those teachings have any social, legal, or moral validity.

Your Curmudgeon is an eager student of Church history, and is quite familiar with the various histories of Christ's universal Catholic Church, and of the Protestant Episcopal Church (USA) in particular. But for the life of him, he cannot identify any point in the larger Church's trajectory, or in that of the Protestant Episcopal Church (USA), at which one could say that it was more conflicted between its sacred and secular stances than it is this very day. A Church so divided against itself cannot stand, and will not continue to stand, because as such it is a contradiction of itself, and of God's holy Word.

Those who are pushing the agenda of same-sex marriages within the Church are set upon overthrowing (in just the Episcopal Church, and in just a very few years) five hundred and fifty years of documented tradition and rubrics -- in the name of -- what? "Social justice and equality"? Give me a break. Whose "justice", and whose "equality"? Has the Holy Spirit, anywhere or at any time, bestowed an unambiguous and unqualified blessing (using objectively measurable criteria such as increased membership), upon any "Church" which has officially sanctioned and blessed same-sex unions? Are we not, instead, witnessing a re-enactment of the now stereotyped "resistance" against a perceived "unjust denial" of what are regarded as "civil (or equal) rights"? But who is denying whom some "right" which is spiritually theirs to claim from God? Since when has Scripture needed to bend to the force of civil law?

This once-noble Church is being transformed, at the hands of single-minded activists, into a secular cult which will reflect only its lack of all Scripture-based grounding and tradition, and (in their place) will embody only the sacrifice to Caesar of those things which are properly God's. Nothing will then distinguish such a "Church" from its pagan predecessors. As a consequence, nothing about it will any longer have any claim to loyalty or adherence on the part of its traditional members.

Wednesday, November 23, 2011

[Note: in this opening post on the recent Georgia cases, I begin with the case involving the Presbyterian Church (Timberridge), because it is the pivot on which the Court's decision in the Christ Church Savannah case turns. I will have more to say about the latter decision in a subsequent post.]

The majority opinion of the Georgia Supreme Court in the recent Christ Church Savannah case offers a study in judicial dynamics. The author of the opinion is Justice David E. Nahmias; he also wrote the opinion for the 4-3 majority in the case of Timberridge Presbyterian Church, which the Court decided the same day. [UPDATE 11/24/2011: I have been given some information which I find simply amazing. I am informed that Justice Nahmias is a prominent member of an Episcopal congregation in Atlanta, while the Presiding Justice of the Georgia Supreme Court, the Hon. George H. Carley, is an equally prominent member of a church that has joined the Anglican Province of America. The latter saw enough of a potential conflict in the Christ Church case to recuse himself from participation in it, while Justice Nahmias not only did not see fit to recuse himself, but authored the majority opinions in both cases! It's pretty good when you find yourself in a position to be able to take a decisive stance in favor of your own Church, while purporting to decide the case on purely secular grounds.]

In the Timberridge case, the dissenters included Presiding Justice George H. Carley, who had recused himself from the Christ Church Savannah case (perhaps because he is a prominent Episcopalian); he was joined in his opinion by Chief Justice Carol W. Hunstein (I am not certain about the distinction in Georgia between the "Chief Justice" and the "Presiding Justice", but there seems to be one). The third dissenting vote came from a lower court judge, the Hon. Deborah C. Benefield, sitting in the place of Justice P. Harris Hines, who did not participate because he serves as an Elder in the First Presbyterian Church of Marietta.

In contrast, there was but a single dissenter in the Christ Church Savannah case: another lower court judge sitting in the place of the recused Presiding Justice Carley: the Hon. S. Phillip Brown. (Judge Benefield was not on that panel.) Taking the two cases together, we then find the following alignments:

For implied trusts in favor of the national Church in both cases:

Nahmias, J.

Benham, J.

Thomas, J.

Melton, J.

For an implied trust in the Christ Church case, but not in the Timberridge case:

Hunstein, C.J.

For an implied trust in the Christ Church case (did not participate in Timberridge):

Hines, J.

Against any implied trust in the Christ Church case (did not participate in Timberridge):

S. Phillip Brown (sitting by designation in place of Curley, P.J.)

Against any implied trust in the Timberridge case (did not participate in Christ Church):

Curley, P.J.

Deborah C. Benefield (sitting by designation in place of Hines, J.)

From this lineup, it may be seen how the core majority (Nahmias, Benham, Thomas and Melton) decided, in effect, both cases. The majority opinion in Christ Church heavily relies upon the majority opinion in Timberridge to bolster its decision. (One wonders how Chief Justice Hunstein could join in an opinion [Christ Church] which derives most of its rationale from an opinion [Timberridge] which she refused to join. Since she did not express her views in either case, however, we are left to speculate.) In effect, the following passage from the dissent of Judge Benefield in Timberridge sums up the core majority's slender rationale for finding an implied trust based on the local church's "participation in", and "benefits received from", its membership in the national Church:

There are church property cases decided solely on the national church’s documents demonstrating the grantor’s intent by looking at the beneficiary’s impression of a trust, apparently due to the alleged grantor’s “affiliation” with the national church and the purported “benefits” enjoyed by the grantor thereby. Kemp, supra, at 328-329; Crumbley v. Solomon, 243 Ga. 343, 344-345 (254 SE2d 330) (1979); Carnes, supra. Affiliation with the national church, and purported benefits of it, have not been articulated as a neutral principle of law. Inasmuch as this “affiliation” is not a deed, statute or church document and it is being relied on to demonstrate intent, perhaps it creates a genuine issue of material fact assuming opposing affidavits to the contrary as in this case. . . . Conversely, it is perhaps a judicial acknowledgment that it is insufficient to decide these critical cases on deeds, statutes and church documents alone.

Often the deeds (or land grant) do not establish a trust holding the property for the greater church. See Carnes; Christ Church; Kemp and Crumbley, supra. In determining intent, this is viewed as irrelevant, “neutral”, or in some roundabout way proof of the grantor’s intent. As the majority opinion notes, “[i]t is true that [the deeds do not] show an intent by the grantors to create a trust.” Maj. Op. at 12. When in truth, it was either created or it was not and a review of the deed would quickly demonstrate which was true. The majority continues “[b]ut [the deeds] also do not expressly preclude the creation of one. Given [the provision in the national church’s constitution] Timberridge would have no reason to believe that its deeds needed to recite a trust in favor of the general church...” Id.; see also Christ Church, supra, at 89-90. It would seem just as easily to follow that Timberridge had no intention of creating a trust since they did not provide one in the deeds as they easily could have. What would be the purpose of including language “this instrument does not create a trust” in a deed?

Precisely the question to ask, Judge Benefield -- why would anyone put such language in a deed? And the answer is: "Given the majority's inclination to conclude, from the lack of any such language, that the parties did not positively preclude the imposition of a trust by other means, one is almost forced to recite such nonsense -- if that is what it will take to keep the courts from leaping to a contrary conclusion."

Because the hook by which the majority finds an "implied trust" on parish property is such a slender reed, and is grounded on no writings whatsoever (that is, no writings of the landowner whose property is impressed with a trust by implication), the finding of an implied trust based on evidence of long-standing affiliation (and the presumed "benefits" received therefrom) takes the doctrine of "neutral principles" into uncharted territory, where there are no firm guideposts by which to assess the evidence. And that evidence, as Judge Benefield also notes, is often disputed, and so should preclude these decisions by summary judgment -- where the judges decide the cases alone, without the benefit of fact-finding first by a jury.

Thus the Christ Church decision relies mainly on Timberridge, and the latter relies on -- but what, exactly, does it rely on? Let's listen to Presiding Judge Curley, as he struggles to understand the basis for the majority's decision in Timberridge:

The majority has contrived an opinion which purports to make a thorough examination of the documents relevant to the “neutral principles of law” doctrine and to find the existence of a trust pursuant thereto even though it virtually ignores a necessary element of trusts. That element is the intent of the settlor, which must be ascertained with reasonable certainty for an express trust to exist. [Citation omitted.] Alternatively, it must be “implied from thecircumstances” for an implied trust to exist. [Citation omitted.] Furthermore, even assuming that the majority has appropriately declined to apply Georgia’s generic express or implied trust statutes, the same requirement of the settlor’s intent nevertheless is found in the neutral principles approach, as articulated in Jones v. Wolf, 443 U. S. 595, 603-606 (III) (99 SC 3020, 61 LE2d 775) (1979):

[T]he neutral-principles analysis shares the peculiar genius of private-law systems in general – flexibility in ordering private rights and obligations to reflect the intentions of the parties. . . . [A] religious organization can ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members. . . . The neutral-principles method, at least as it has evolved in Georgia, requires a civil court to examine certain religious documents, such as a church constitution, for language of trust in favor of the general church. In undertaking such an examination, a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust. . . . Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. . . . And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

(Emphasis supplied.)

Thus the whole purpose of the "neutral principles" approach, as the Presiding Justice reminds us, is to ascertain what both parties intended in their arrangement, based on the written evidence which documents that arrangement. Justice Carley then addresses his most withering criticism to the way in which the majority analyzes those documents in Timberridge (with my emphasis added to his words):

The intention of Timberridge Presbyterian Church (Timberridge), as the local church, cannot be discerned by consideration of either the 1982 amendment to the Book of Church Order (BOCO) or the 1983 Book of Order (BOO). To limit judicial consideration in this manner would effectively constitute an inappropriate deference to church doctrine and reliance on religious precepts, or even an attempted return to the unconstitutional “departure from doctrine” approach. [Citation omitted.] Although the majority does consider relevant documents other than BOCO or BOO, it does not articulate what it should be looking for. Where, as here, there is neither a dispositive statute nor any deed with clear trust language, a court must look in other documentation or circumstances for the local church’s intention to create a trust or to consent to trust provisions in national church documents. . . .

The Articles of Incorporation for Timberridge Presbyterian Church, Inc. (TPC Inc.) are a remarkably slender reed on which to hang the weight of the majority opinion. The majority relies upon the Articles’ reference to the definition of “active member” in the Book of Order but fails to quote the whole definition, which reads as follows:

An active member of a particular church is a person who has made a profession of faith in Christ, has been baptized, has been received into membership of the church, has voluntarily submitted to the government of this church, and participates in the church’s workand worship.

BOO § G-5.0202. This provision is “located outside the property section of the Book of Order.” [Citation omitted.] Like the overall intent of the Book of Order, the purpose of that definition clearly is spiritual. The portion on which the majority relies is that an active member has “voluntary submitted to the government of” the general church. This provision strongly implies in the context that the member has submitted to the authority of the general church only in spiritual matters. [Citation omitted.] See also BOO G-9.0102 (ascribing to the governing bodies of the general church “only ecclesiastical jurisdiction for the purpose of serving Jesus Christ and declaring and obeying his will in relation to truth and service, order and discipline”). Moreover, the definition of “active member” relates only to individual members, and not to local churches or their relationship with the general church. Thus, judicial inquiry into and application of that definition is both irrelevant and constitutionally foreclosed. [Citation omitted.]

Justice Carley then notes the utter lack of factual evidence to indicate an intention on the part of the local Presbyterian congregation to submit to an implied trust on their property. First, their joinder in the union of the national churches was not something under their control:

In the face of the exceedingly weak or non-existent documentary evidence of Timberridge’s intent to hold all of its property in trust for the general church, other relevant documentation and circumstances overwhelmingly prove the absence of any such intent. Timberridge operated for more than 150 years, including over 100 years as a member of the Presbyterian Church in the United States (PCUS), without any property trust provision. . . . It cannot be said that Timberridge voluntarily affiliated with the general church in 1983. The Articles of Agreement providing for the 1983 reunion of the PCUS with the United Presbyterian Church in the United States of America (UPCUSA) mandates that “[e]ach and every congregation of the [PCUS] and of The [UPCUSA] shall be a congregation of the Presbyterian Church (U.S.A.).” Article 1.4. Thus, instead of being required to “opt in,” each local church was automatically part of the new general church and was given eight years to petition for dismissal or to seek an exemption from the provisions of the property chapter of the Book of Order.

Next, the evidence showed that Timberridge did all that it could to avail itself of a provision in the agreement of union which allowed it to "opt out" of the property trust clause in the Book of Order:

Timberridge did not wait eight years, but rather acted in four years. In fact, Timberridge acted just two weeks after the last individual owner conveyed her interest in the land to Timberridge, and the Presbytery was promptly notified as required. More important, Timberridge broadly took “the ‘property exemption’ as provided in the Book of Order (G-8.0700)” and did not limit that notice to a single provision of the property chapter. Most important of all, Timberridge’s notice, regardless of the precise application of that chapter’s language thereto, constituted Timberridge’s only expression of intent with respect to the recently enacted property trust provisions in national church documents. In that prompt notice, Timberridge unmistakably rejected any consent to hold its property in trust for the general church. It is irrelevant that 20 years elapsed thereafter during which Timberridge continued its relationship with the general church until a dispute arose and Timberridge brought suit asserting control of its property. Those circumstances are wholly consistent with the fact that Timberridge, which never expressed any intent to create a trust, was relying on its prompt notice of exemption from property trust provisions as its expression of intent not to create a trust. [Citations omitted.]

Judge Carley goes on to contrast Timberridge's conduct in this regard to that of Christ Church Savannah, which supposedly allowed 30 years to pass without making any objection to the adoption of the Dennis Canon. This is unfair, and shows a lack of appreciation for the inability of the national Episcopal Church to adopt canons which bind individual parishes and dioceses without their consent. General Convention is not the "supreme legislative authority" in the Episcopal Church (USA) -- language which would have made it just that was expressly voted down by the dioceses meeting in General Convention in 1895.

Without any kind of supremacy clause in its Constitution, General Convention can only adopt resolutions and canons which it asks the dioceses and parishes to honor in their day-to-day operations. It takes local bylaws and local canons to implement those requests from General Convention, and implementing them attests tothe mutual consent of both parties to the arrangement. But the Dennis Canon was not implemented by any rule or bylaw adopted at the parish level, and the Diocese's own canons contained a provision that preserved the "vested rights" of property owners which pre-existed the adoption of canons.

Thus, in the same way as the dissenters in Timberridge criticize the majority for implying a parish's assent from its long-continued silence in regard to a unilateral proposal by the national church to establish a trust on their property, so the same criticism could be made of the majority's similar finding in the Christ Church case.

In consequence of these two decisions by a four-person core majority on the Supreme Court of Georgia, the law of implied trusts on church property has now come unmoored from any grounding in statute or legal precedent. We are back full circle, to the days when an "implied trust" not to depart from doctrine was the only basis for the courts' decisions -- until the United States Supreme Court banished all such theories of implied trust in the (Georgia!) case of Presbyterian Church v. Mary E. B. Hull Presbyterian Church, 393 U.S. 440 (1969).

The ground for banishing the implied trust doctrine then was that its application entangled the courts in religious doctrine to a degree that was impermissible under the First Amendment. Under it, the courts had to examine which faction in a divided church had kept more closely to the original purposes for which the property on which its building stood had been donated.

But under the present doctrine, the courts are drawn into all sorts of improper speculation about the significance to attach to a member church's "subjecting itself" to the "governance" of a national church -- including to the point, apparently, of conceding to that national church the power to impose unilaterally a trust on the member's property! In order to find such an extraordinary cessation of power, one would think that the evidence of the parish's intent would have to be extremely conclusive. As Judge Benefield points out in her dissent, however, that is not the case under the standard applied by the majority (with my emphasis added):

Despite this, the majority in the case sub judice states their decision is “based ... on the sort of legal materials ‘familiar to lawyers and judges,’ embodied in a ‘legally cognizable form,’ and having nothing to do with the church’s religious doctrine,” quoting Jones v. Wolf. . . . In what non-church property case is the grantor’s intent found solely in a self-serving document created by the grantee determined to be a “legally cognizable form”?

Calvin Massey’s quote in the Kemp dissent goes on to provide:

This is ... the ... extraordinary power to seize property by divesting others of their beneficial interests in the property ... Donors of property to local churches are not necessarily members of the hierarchical church. Such donors have no assurance that their intent to transfer property in trust for the exclusive benefit of the local church, and not the hierarchical church, will be honored. All the general church would need to do is alter its own internal governing instruments to nullify the explicit intentions of donors.

Precisely again, Judge Benefield -- you have touched upon the central nerve of this entire problem. For if national churches can unilaterally, through their so-called "democratic" processes, cancel the intent of individual donors that their gifts stay with the local parish, then those donors will simply stop giving anything to their local parishes. I have yet to see a single Episcopal Church (USA) case in which the dissenters wanting to stay in ECUSA formed the majority -- in every published case, they were the minority. And in practically every such case to date, as well, the minority is simply too small to maintain, pay for and sustain "their" church property. As a consequence, the Diocese has to step in and subsidize the parish's operations, or else leave the church building vacant, or put it on the market for purchase by anyone except the majority who was forced to leave it.

This doctrine makes absolutely no sense to any generous-minded donor, and in the long run, it will seal the fate of the Episcopal Church (USA). No new churches will be built with donated funds, and those churches that remain will have fewer and fewer members over time, since nothing they can do locally will assure them that the building in which they worship is truly theirs. That is why the Dennis Canon is ECUSA's Trojan Horse, and why the next General Convention should abolish it -- if it genuinely wants the Church to grow, rather than shrink.

Tuesday, November 22, 2011

I am far from choosing a favorite candidate for president. Yet I could not help but be struck by the series of videos shown below, which I never would have seen had my source for Presidential campaign news been the usual (mainstream) media.

Please do not mistake my purpose in showing these videos. I am not pushing a particular candidate (yet) for President. What I would like you to learn from these videos is exactly how encouraging and refreshing a Christian worldview can be in the very midst of secular politics. It is a view that never flinches from telling the unvarnished truth -- whether about oneself, or about others who are getting all the attention.

With those caveats firmly in mind, you should now watch this perfectly articulated response to the entire "Occupy ____ " movement (fill in the blank with a location near you):

And having delivered that resonant message, the candidate next allowed himself some Christian candor, as you will experience about three to four minutes into following video:

The candidate was also asked why the current secular media so attacks and persecutes any public figure who dares to confess his religious faith as a part of a campaign for office. In response, he unassumingly instructed his questioner by drawing on his time spent in the classroom, as a professor of history:

Now, before all the partisans pile on with their comments, I would like to be permitted this one observation. Newt Gingrich is decidedly a sinner, no better and no worse (a sinner, that is!) than most of us. His track record still makes a lot of people very angry. To the extent, however, that anger about Gingrich's past doings spills over into one's judgment about the current crop of presidential candidates, I would urge a good deal of careful, and measured, response to those inclinations. "Judge not, lest ye be judged"; or perhaps, "There, but for the grace of God, go I."

I see very few in the race who are as willing as Newt Gingrich now is to speak to an election-year audience the plain, Christian truth about any topic. Rather than admit their faith-based perspective, most candidates dance around their religion, or shy away from any probing inquiry, because of legitimate fears for how any honest response will be treated in the secular media. But those candidates, I suggest, are the ones who are truly uncomfortable with their faith, who are in need of assistance to be able to integrate their religion with their public life, and who therefore, in my view, are not yet ready for high public office.

I would rather have, any day, an avowed and repentant Christian for a political leader than I would someone who still thinks they can do it all on their own -- with (of course) what they estimate will be sufficient (but even so, only secular and human) help.

As I say, the race is still young, and doubtless there are many surprises ahead. At this stage, I am simply expressing a word of appreciation for a candidate who can sincerely articulate, unabashedly and in public, his faith and the confidence it gives him, while knowing that there are many who have yet to forgive him his past transgressions. The proper response in that situation is a sincere Christian humility, and I think Newt Gingrich in his latest appearances is exhibiting such a response. And for that, I can be thankful -- no fellow Christian should wish for anything less.

Monday, November 21, 2011

The Supreme Court of Georgia, in a 45-page decision which no doubt was lengthened by having to respond to a 96-page dissent, has decided the appeal of Christ Church, Savannah against the majority which voted to leave ECUSA and the Diocese of Georgia in 2007, and to award the property (four parcels, the first and principal one of which was granted to the local parish by the colonial authorities in 1758) to the minority who chose to remain in ECUSA.

The majority opinion goes to great lengths to justify its finding that the property of Christ Church was impressed with an implied trust in favor of the Diocese and the national Church through the parish's acquiescence in the national Church's Constitution and Canons over the years, as exhibited by their reaffirmation of those documents in 1981, when they received a new State charter. The dissent offers a treatise on why that cannot be the case, especially given that the national Church did not express its trust on church properties via an amendment to its Constitution, as Jones v. Wolf held (in dictum) it could do, but through a simple amendment to its Canons.

At the same time, and in a 4-3 split, the same Court, in an opinion authored by the same Justice (Nahmias), reversed the decision by the Georgia Court of Appeals that the Timberridge Presbyterian Church had successfully prevented, by its resistance to, and "opting out" of, its national Church's trust provision, the imposition of a trust on its property. (I had criticized the inconsistency between the two opinions of the Court of Appeals in this earlier post.)

With hundreds of pages of legal opinions to digest, I cannot present more than these brief observations at this point. In due course, I will put up a longer treatment of these two important decisions.

Saturday, November 19, 2011

As I have remarked on many occasions, the Dennis Canon, probably (but not definitely) enacted at General Convention 1979, is the Episcopal Church (USA)'s Trojan Horse. Sneaked in under everyone's radar at the last possible minute, it lay dormant for over twenty years before suddenly unleashing its hidden forces to go out and attack unsuspecting parishes. Unable to accomplish anything by itself, it needed the assistance of various State courts and legislatures to achieve its results. And in the process, it has cost the Episcopal Church alone over Twenty-Five Million Dollars, and tens of thousands of lost parishioners, hundreds of parishes, and four entire dioceses. A Trojan Horse, indeed!

Now comes word that the ugly beast has been definitively and decisively banished from the Church's Diocese of South Carolina. After receiving a crippling wound last September from that state's Supreme Court, the creature was sent finally packing by the Diocese and its bishop, when last week they mailed out quitclaim deeds to every single one of their incorporated parishes. The legal effect of such deeds was that the Diocese gave up and released any and all claims ("quit its claim" -- hence "quitclaim deed") it may have had, from whatever source or reason, and however long ago acquired, in those parish properties. Chancellor Wade Logan explained:

For 190 years (1789-1979) there had never been any idea that somehow the parishes did not completely and fully own their property. Our Supreme Court has now said that the attempt to change that in 1979 by the General Convention was not binding on the parish of All Saints, Pawley's Island, SC. In recognition of that ruling, and in continued pursuit of our historic unity based on common vision rather than legal coercion, the Diocesan Convention removed the relevant section from our canons in October 2010. The issuance of these quitclaim deeds lays to rest any lingering issue that may exist for some parishes when they seek to obtain title insurance or secure bank financing for parish projects. Parishes may choose to file them or not based on their individual needs. We trust this action will enable parishes to freely exercise their rights and responsibility to oversee that which God, through the faithfulness of prior generations, has bequeathed to them.

The usual suspects are muttering imprecations against Bishop Lawrence as a result of this brave deed. They of course have to see it as betraying the Episcopal Church (USA), instead of strengthening it. Incredibly, they also see Bishop Lawrence as having made a multi-million-dollar "gift" to the parishes of their own properties! (Apparently they considered that "they" -- the Diocese and the Episcopal Church, and by projection the group of dissenters who is doing all the complaining -- as good as owned them. Well if that was the case, why didn't "they" contribute a single penny to their upkeep? Hypocrites never change, because they are incapable of seeing what everyone else can see.)

"Wait -- how did giving up all its Dennis Canon claims strengthen the Church?" you ask. "Didn't that act make it easier for parishes to leave the Diocese? And won't the Diocese (and the Church) be that much weaker when the Dioceses leave?"

The answer is simple, but first let me switch my metaphors for a moment. Think of the Dennis Canon as a set of chains which ties parishes to their Diocese. In most Dioceses, parishes know that if they try to cut those chains, their Diocese will go after them in court, and try to get the court to award them everything the parish has -- its buildings, altar cloths, bank accounts, candlesticks and anything else that can be itemized as belonging to that parish. In that way, the Dioceses try to make the penalties for breaking the chains too severe for the parishes even to contemplate such an act.

Now think about that image for a moment. What kind of church needs to be held together by chains? Remember that fine old prayer which used to be recited every Sunday? We prayed:

. . . More especially we pray for thy holy Church universal; that it may be so guided and governed by thy good Spirit, that all who profess and call themselves Christians may be led into the way of truth, and hold the faith in unity of spirit, in the bond of peace, and in righteousness of life.

That's right -- a church is held together by unity of spirit and the bond of peace. It emphatically cannot be kept together by chains and shackles. Thus, by removing the shackles of the Dennis Canon in the Diocese of South Carolina, the Episcopal Church in that Diocese is now strengthened by its parishes being allowed to come together, not because they are compelled to, but because they are free to come together, to be "led into the way of truth, [to] hold the faith in unity of spirit, in the bond of peace, and in righteousness of life."

As for parishes who wish to leave, nothing the Diocese did or did not do could stop them, after the Supreme Court's decision in the All Saints case. They have been free to leave ever since last September, yet none has done so. The only thing that would have reinstated the chains and shackles after that ruling would have been to force each parish to sign a deed of its property putting it into a trust for the benefit of the Diocese and ECUSA. And if the Diocese could have managed that feat, then the Church never needed to pass the Dennis Canon in the first place.

You see, that is why the Dennis Canon was sneaked through as a last-minute and little-noticed change to the canons: it could take effect immediately, without anyone's being aware of it (except the Rt. Rev. Walter Dennis himself). Had they tried to make it a change to ECUSA's Constitution, it would have had to undergo a three-year vetting process in each and every Diocese, and then come back to General Convention for another vote.

Those who shuffled the Canon under the noses of the deputies at the last minute knew exactly what they were doing: they knew they could never have gotten the parishes' voluntary consent to such a drastic provision if they had to wait three years to ask each and every one of them. So they changed the Canons instead, which required only a quick voice vote (the records of which are now permanently lost from the Archives).

There are those in the Church today, however, who still prefer using the threat of force, and chains and shackles, to keep the parishes so firmly tied to the ecclesiastical structure that they could never think of trying to leave. For them, their abstraction of a Church is a thing in itself, which demands unswerving allegiance by all who call themselves Episcopalians. It also demands all of their Church property, forever.

Remember the oral argument of the Episcopal Church Cases in the California Supreme Court? Justice Baxter asked ECUSA's attorney, Heather Anderson, to imagine a parish which was considering joining the Episcopal Church, but which wanted to be certain it could keep its valuable property in the event the arrangement did not work out. What could such a parish do, he asked, if it wanted to avoid the Dennis Canon but still belong to the Episcopal Church?

Her answer came after an awkward pause, but then it was firm and clear: "The only option would be for that parish not to join the Episcopal Church." And in those fourteen words you will learn all you need to know about the collectivist philosophy of those want to uphold the Dennis Canon: "Join our Church, and everything you have will become ours forever."

As this feature of today's ECUSA becomes more and more known, there will be fewer and fewer new churches established and built within ECUSA, because what donor wants to see the fruits of his or her donation taken over by some bishop and sold, perhaps, to become a mosque? Or, just as worse, sit around empty and forlorn, when those who built it and kept it up could still be using it? It is no wonder that ECUSA's numbers are steadily dwindling -- one reason is that there are not very many new churches being built, thanks again to the Dennis Canon, and the parishes which already belong to a Diocese are getting smaller, instead of larger. Take away the congregation's impression that they own the buildings which they pay so much to maintain, and you find them not so eager to contribute any more.

The Diocese of South Carolina is one of the few mainland dioceses which is actually growing, and not shrinking, so it must be doing something right. Confirming to its parishes that they won their property free and clear is one of those things. (The Diocese of Upper South Carolina was also freed of the chains of the Dennis Canon by the South Carolina Supreme Court's decision, as well. In 2003 they entertained a resolution which would have abolished the Canon, but did not pass it. They might want to reconsider.)

This next Monday, at 8:30 a.m., the Georgia Supreme Court will post its much-awaited decision in the Christ Church Savannah case. We will then learn if the Dennis Canon trumps even the magnificent heritage of Georgia's Mother Church, which predates the founding of ECUSA itself by half a century. If the petty tyrants prevail, watch out for the chains to tighten, and for the forces of intimidation and fear to revel in their grip.

But if the Georgia Supreme Court follows South Carolina's lead, there will be another entire State's Episcopal parishes set free from their bondage, with the ability to breathe once again, and concentrate on their mission, rather than live in fear of losing their properties.

Wednesday, November 16, 2011

The following is a real, live quote from a person running for President of the United States in 2012, at a recent fundraiser:

"Don't compare me with the Almighty; compare me to the alternative."

???

??????

Really? The "alternative" to the Almighty Himself?

Now, if you haven't seen any front-page stories or headlines about this statement, that should be a clue to the identity of the person who actually said it -- you guessed it:

Barack Obama.

He said it at a recent fundraiser in affluent Woodside, California, for which the minimum entry fee was $35,800. (Scroll down to the very end of the story to get the quote, which is repeated without the slightest sense of sarcasm or irony, or even awareness of the implications, because this is the New York Times, reporting an Obama fundraiser.)

But can you imagine the headlines had Governor Rick Perry, or -- heaven forbid -- if Herman Cain had said something like this at a fundraiser?

Now let me give you one more recent sample of the mainstream media's double standard. Take a look at this recent quote, and see if you can guess who said it (hint: it's a television newscaster).

"[W]e thought we'd bring you up to date on those protesters, the Occupy Wall Street movement. As of tonight, it has spread to more than 250 American cities, more than a thousand countries, every continent except Antarctica . . ."

Really, again? "More than a thousand countries" on every continent except Antarctica?

The United Nations started out with 51 members in 1945; as of 2011, its membership had grown to 193. Even if you try to count Palestine and Taiwan, you still could not break 200, let alone a thousand.

So who made that fatuous statement on network TV? Was it Sarah Palin on the Fox News Channel, perchance?

Decidedly not. If so, one could just imagine the next day's headlines and TV commentaries:

"In her latest gaffe in front of national news cameras, Governor Palin once again demonstrated her unreadiness to serve in national office, with an appalling lack of knowledge about the number of countries in the world . . ."

Or once more, if it had been Herman Cain?

"Cain Again Demonstrates His Ignorance of Foreign Affairs"

Well, since you didn't see anything like those stories or headlines, just who was it who demonstrated such monumental ignorance in front of the news cameras -- and got away with it?

Monday, November 14, 2011

With the extremely disturbing news about the long-standing cover-up that went on over sexual abuse of young men by an assistant coach at Penn State University, it is very instructive to compare the reaction of the University after the story came out to that of the House of Bishops concerning the revelations, on numerous blogs (Catholic and Episcopalian), concerning the Presiding Bishop's own cover-up of her actions while serving as the Bishop of Nevada.

Let me be perfectly clear: the two situations are not precisely parallel, because the sexual abuse of young men went on under the noses of the responsible officials at Penn State University, who studiously ignored bringing the abuser to account, or reporting him to the police. In contrast, and at least as far as we now know, Father Bede Parry did not commit any sexual abuse of minors under the nose of Bishop Katharine Jefferts Schori.

But there -- with one big exception, which is the point of this post -- the dissimilarities between the two cases end. For it is now undisputed that Bishop Jefferts Schori learned early on, from Bede Parry's own former Abbot, that he was a multiple-count abuser who could not continue to function as a Catholic priest (or monk) because he had "a proclivity to reoffend with minors." And she learned of this fact before she decided to receive him into her Diocese as an Episcopal priest.

[UPDATE 11/18/2008: At long last, and far too late to stem the damage, the Presiding Bishop has decided to favor us with a statement explaining her version of the facts. As others have already observed, the statement appears to have been carefully vetted by the Presiding Bishop's personal attorneys (both in-house and outside counsel -- but the latter her personal Chancellor) to avoid any inadvertent admissions of those matters which no one yet can prove, and of which she herself would be the most knowledgeable. She also indicates that this will be her one and only statement on the matter, since she refers all further inquiries to the current diocesan of Nevada, the Rt. Rev. Dan Edwards.

From this Curmudgeon's point of view, her statement just adds more fuel to the fire, because it conceals more than it answers -- as I shall demonstrate in detail in a future post. For now, the main thing to note is that it puts her against the current accounts of both former Father Parry, who admittedly is a confirmed liar (now trying his best, one assumes, to repent of his past and make amends for his sins), and his former abbot. The latter -- who had no reason whatsoever in 2002-2003 to hide or to distort the truth, and who has even less of a reason to do so now -- has strongly affirmed that he informed Bishop Jefferts Schori of the fact that Bede Parry had been found to have "a proclivity to reoffend."

That particular phrase redounds, because it echoes the wording of the specific conclusion of the Roman Catholic Church's psychological evaluation in 2000 of Fr. Bede Parry -- a conclusion which sealed his fate, as concerns his being allowed to remain a priest (or even a monk) in the RCC. For Abbot Polan to say (as he did just last May, in the presence of three witnesses) that he told Bishop Jefferts Schori in those very words of that conclusion, is to put his testimony squarely at odds with the Presiding Bishop's latest (and only) statement on the matter, linked above.

For the present, therefore, we have two directly contrary reports of what actually happened when Bishop Jefferts Schori made background inquiries into Fr. Bede Parry's trajectory as a Roman Catholic priest. What that contradiction necessarily entails, however, is that one of the two of them (Bishop Jefferts Schori, or Abbot Polan) is now lying. I leave it to the intelligent reader to conclude who has at this point the greater motivation to prevaricate under these circumstances. The only significant question remaining, in my view, is whether or not this incident will finally provide the impetus for a full and thorough investigation into the reception of Father Parry by Bishop Jefferts Schori.]

Therein lies the chief similarity between the two cases: Both the officials at Penn State University and at the Diocese of Nevada (including its Standing Committee at the time, and its Commission on Ministry, as well as its Bishop) made an apparent decision to ignore the offender's history, and to place (or leave) him in a position where he would be free to continue his abuses, if he was so inclined (notwithstanding supposed "restrictions" on his ministry, which were soon forgotten altogether).

The chief dissimilarity between the two cases, however, lies in seeing how the two institutions reacted to the news of this decision to hire (or to retain) a self-convicted pederast, once the news of that decision became public. The University fired not only the offender, but also his supervising head coach, an 84-year-old figure otherwise beloved in college football for his record number of winning seasons. And the University's President, to whom the charges had also been reported, but who had chosen not to take them to the police, was fired as well.

But as for the Episcopal Church (USA)? The former Bishop of Nevada, who now serves as the Church's Presiding Bishop, has had not one public word to say about her decision to receive Bede Parry as an Episcopal priest. The Diocese of Nevada, in its turn, has published a statement assuring everyone that the canons were "meticulously followed", but which ended up raising more questions than it actually answered.

In short, it is the University which has acted in a more open and Christian manner than one of the chief Christian churches in the United States. The University chose to "walk in the light", as St. John put it in his first-century letter to other early Christians (highlighted so appropriately by the Rev. Canon Philip Ashey in the introductory video), and to let the chips fall where they might -- even if it meant the dismissal of one of its very best football coaches ever. The Episcopal Church (USA), in contrast, continues to stonewall further investigation or questioning, and decidedly has not chosen to "walk in the light."

In this post, I want to call out my own Church, so that it may choose to walk in the light on this topic rather than opt for continued darkness, and so that it, likewise, will let the chips fall where they may.

The Church, acting through its own disciplinary bodies, should inhibit its Presiding Bishop from further exercise of her office and functions until she has made a clean breast of all the factors surrounding her decision to receive Bede Parry, a confessed sexual offender and demonstrable liar to her face, as a priest in her Diocese. Although the Diocese's Commission on Ministry, and Standing Committee, each had specific roles to play at specific times in the reception process, it remains a fact that in the final analysis, the decision to receive him as a priest was hers, and her decision alone.

Those of us looking at that decision in light of what has since been uncovered, however, have to ask: What evidence possibly could have amounted, in the view of Bishop Jefferts Schori, to a convincing documentation of his "godly and moral character", or have shown that "[his] departure . . . from the Communion to which [he previously] belonged has not arisen from any circumstance unfavorable to moral or religious character"? (I am quoting from the 2003 version of Canon III.11, which ostensibly applied to Bishop Jefferts Schori's decision at the time.)

And if those obvious discrepancies between canon and deed in 2004 were not enough, we have now learned from Bede Parry himself that he had voluntarily cooperated in his dismissal from the Catholic priesthood before he was received as a priest by Bishop Jefferts Schori! Don't even try to think how a former Catholic priest, defrocked for sexually abusing young men, could begin to qualify for reception as a functioning priest in the Episcopal Church. Instead, take a look at the constitutional and canonical provisions to which both he and Bishop Jefferts Schori were subject at the time. Canon III.11.1 (a)(2) required that Fr. Parry supply "[e]vidence of previous Ministry and that all other credentials are valid and authentic" (emphasis added). Yet he confesses that in 2002 he was being dismissed from his orders, and would not have been allowed to remain as a priest in the Roman Catholic Church -- he was not even a suitable candidate to be a monk in a monastery.

"Evidence of previous Ministry" would have been no problem -- Fr. Parry would have to produce only his ordination papers in the Roman Catholic Church, which would have shown that he had been validly ordained as a priest in 1982.

The "other credentials" of which the Canon speaks are not defined. Taking the words in a canonical sense, however, they would be something akin to "letters dimissory" --- credentials from a bishop given to a priest when he leaves that bishop's jurisdiction, and certifying that he served in good standing, and is not departing for any reasons having to do with his moral character. If one thing is certain in this mess, it is that no Catholic bishop or abbot would have given Bede Parry such credentials on his departure from the Catholic Church. Given that fact, what could he have used to prove his prior "good standing" in the Catholic Church when he applied to Bishop Jefferts Schori for reception into the Episcopal Church? She and her Standing Committee must have seen some sort of evidence on that point; otherwise, they could not properly have given him the preliminary certificates of acceptance required by Canon III.11.3, since he went on and was finally received in 2004. How, then, could he have even qualified for such acceptance under Canon III.11.3 in the first place?

Here is a list (in italics) of all the things which that Canon required in 2003 that Bede Parry submit to Bishop Jefferts Schori, as a prerequisite for his even being considered for Episcopal priesthood (my comments and observations are in square brackets):

(1) Evidence that the person is a confirmed adult communicant in good standing in a Congregation of this Church [he would have supplied evidence from his employers at All Saints in Las Vegas];

(2) Evidence of previous Ministry and that all other credentials are valid and authentic [as noted, he easily could have produced proof that he was validly ordained by the Catholic Church in 1982, but that is all; as argued above, he certainly would not have had any kind of certificate or credentials attesting that his departure from the Church had not been for any reasons touching upon his moral character];

(3) Evidence of moral and godly character; and that the person is free from any vows or other engagements inconsistent with the exercise of Holy Orders in this Church [after his dismissal from the Roman Catholic Church, he certainly would have been "free from any (such) vows or engagements," but evidence of the reasons for his dismissal would at the same time have negated any previous submissions of his "moral and godly character" making him fit to be a priest];

(4) Transcripts of all relevant academic and theological studies [this would have required him to submit a transcript from St. John's College of Theology in Minnesota, where he had been briefly suspended for sexual misconduct, and required, as a condition of graduation, to take sexual abuse counseling];

(5) A certificate from at least two Presbyters of this Church stating that, from personal examination or from satisfactory evidence presented to them, they believe that the departure of the person from the Communion to which the person has belonged has not arisen from any circumstance unfavorable to moral or religious character, or on account of which it may not be expedient to admit the person to Holy Orders in this Church [again, such a certificate must have come from his employers at All Saints in Las Vegas -- but if it had been submitted, it would serve only as evidence that he had lied to them about his background in order to be hired, because it was contradicted by Abbot Polan when he talked to Bishop Jefferts Schori];

(6) Certificates in the forms provided in Canon III.8.6 and III.8.7 from the Rector or Member of the Clergy in charge and Vestry of a Parish of this Church [these would again have come from All Saints in Las Vegas, showing their support for his application]; and

(7) A statement of the reasons for seeking to enter Holy Orders in this Church [such a statement would have focused on the need for additional clergy at All Saints, but probably said nothing about the reasons Bede Parry had been ousted from priesthood in the Roman Catholic Church].

And those requirements assume, as we have seen, that Bede Parry had been serving for at least five years as a Minister "in good repute" in the Roman Catholic Church, and so would have no trouble in supplying all the evidences required of his "godly and moral character." Canon III.11, however, is for receiving, as its title states, "Priests and Deacons Ordained in Churches in the Historic Succession but Not in Communion with This Church." It emphatically cannot apply to priests or deacons who have been defrocked by that other church on grounds of immorality, and who hence could not ever establish their "godly and moral character."

Yet all the evidence is that Bishop Jefferts Schori proceeded to issue to him a certificate of his acceptability, and then, after more than a year, to receive him formally under Canon III.11 as a priest in good standing in her Diocese. How could this possibly amount to what the current Bishop of Nevada (the Rt. Rev. Dan Edwards) has described as "meticulously follow[ing] the applicable canons"? Bishop Edwards expressly references Canon III.11 as the one which Bishop Jefferts Schori "meticulously followed" -- but as we just saw, that Canon applies only to persons who, at the time of their application to be admitted to Episcopal orders, had "with success" practiced their previous Ministry "for at least five years with good repute", and thus had good credentials to present at the time of their application.

If Bishop Jefferts Schori received Bede Parry under the provisions of Canon III.11, as Bishop Edwards says she did, then she was either grossly negligent, or mightily deceived -- but she could have continued in that state only until she talked with Fr. Parry's former Abbot. That conversation alone, confirmed by Abbot Polan himself, should have raised enough red flags to require a complete reappraisal of Bede Parry's application -- with a resulting determination that he could not be received under Canon III.11, since he could not, with his background, satisfy its requirements. (Being caught lying about one's background in an application, and on such a material matter, should have negated any prior submitted proofs of "godly and moral character" on the spot.)

It is high time, therefore, for charges to be brought against Presiding Bishop Katharine Jefferts Schori for violating the Constitution and Canons of her Church in the matter of Bede Parry, while she was the Bishop of Nevada. (The current disciplinary canons cover offenses committed up to ten years ago, provided that they were offenses so punishable at the time they were committed. Article VIII of ECUSA's Constitution read the same in 2003-2004 as it does now, so the "same offense" requirement is easily satisfied. See the further note on the statute of limitations below.)

Under Article VIII of ECUSA's Constitution, as in effect both in 2003 and now, Bishop Katharine Jefferts Schori, as the diocesan bishop and Ecclesiastical Authority in the Diocese of Nevada, was required to see that

No person shall be ordered Priest or Deacon to minister in this Church until the person shall have been examined by the Bishop and two Priests and shall have exhibited such testimonials and other requisites as the Canons in that case provided may direct.

As we now see from his public admissions on the record, there is simply no possible way that Bede Parry could ever have validly "exhibited the testimonials and other requisites as the Canons . . . may direct" -- including valid and authentic credentials of having been a Catholic priest in good standing, whose departure from that Church was not due to any "circumstance unfavorable to [his] moral or religious character . . .". Another part of the Canon (section 2) also required Parry to supply evidence that he had "exercised a ministry in his previous Church with good repute and success for at least five years . . .". Once again, it would be highly revealing to see what the evidence of "good repute" was which convinced Bishop Jefferts Schori -- especially after she had spoken with Bede Parry's former Abbot, and he had warned her of Fr. Parry's prior offenses and his "proclivity to reoffend with minors."

Just in case the Constitutional prohibition against receiving someone like Bede Parry as an Episcopal priest was not clear enough at the time, there was another paragraph (the fourth) in that same Article VIII which should be brought to bear here. It declares, in relevant part (with emphasis added):

If any Bishop . . . confers ordination as Priest or Deacon upon a Christian minister who has not received Episcopal ordination, the Bishop shall do so only in accordance with such provisions as shall be set forth in the Canons of this Church.

Bede Parry had not "received Episcopal ordination" when Bishop Jefferts Schori welcomed him as a priest into her Diocese at its annual convention in the fall of 2004. By doing so, however, she effectively allowed him to function as a priest canonically resident in her Diocese, just as though she had ordained him -- without requiring that he first satisfy all the canonical requirements to be ordained an Episcopal priest. In other words, even if Bede Parry had come to her initially as a candidate for the priesthood, she never could have begun his ordination process lawfully under the Canons, given his previous record of abusing young males. Her licensing of him, despite his disqualification to be ordained, and especially despite his having lied to her, was thus a second violation of Article VIII, as quoted above.

And we are not done yet. For Article VIII goes on to provide, in its next and fifth paragraph:

No person ordained by a foreign Bishop, or by a Bishop not in communion with this Church, shall be permitted to officiate as a Minister of this Church until the person shall have complied with the Canon or Canons in that case provided . . . .

Once again, this provision applied equally well to the case of Bede Parry, who had been previously ordained "by a Bishop not in communion with this Church." Despite his lying to her in his application, and despite all of his other disqualifying conduct, as cited above, she nevertheless "permitted [him] to officiate as a Minister of this Church" without first complying with all of the applicable canons, in direct violation of ECUSA's Constitution. This violation is the most blatant and direct of the three, because it focuses on just the licensing of Bede Parry in the Diocese of Nevada.

There are thus three Constitutional violations which can be laid at the feet of the Presiding Bishop over her conduct in the Bede Parry case:

1. In violation of the first sentence of Article VIII, Bishop Jefferts Schori gave Episcopal recognition to, and revived in the Episcopal Church, the priestly orders of Bede Parry when the evidence and testimonials he gave to her, and to the diocesan Standing Commission, must have been false. At best, he must have concealed from them the most important facts about his prior abuses -- about which Bishop Jefferts Schori had specifically been advised and warned -- and the consequent reasons for his having been forced out of the Roman Catholic Church in disgrace.

2. In violation of the fourth paragraph of Article VIII, Bishop Jefferts Schori recognized Bede Parry's priestly orders without having complied with the canons for ordaining someone who had not previously been ordained in the Episcopal Church.

3. In violation of the fifth paragraph of Article VIII, Bishop Jefferts Schori licensed Bede Parry to function as a minister in her Diocese without requiring him to comply honestly with all the provisions of Canon III.11 as then in effect.

The new Title IV imposes a two-year statute of limitations on any proceedings for "knowingly violating or attempting to violate" the Church's Constitution and Canons. However, we have it on Bishop Edwards' word that the above offenses were not willful offenses, because every attempt was made to "follow the canons meticulously." Instead, the violations described above -- consisting either of gross negligence or reckless disregard -- would come under the following language of new Canon IV.4.1:

1. (a) . . . [A] Member of the Clergy shall:. . .(g) exercise his or her ministry in accordance with applicable provisions of the Constitution and Canons of the Church and of the Diocese, ecclesiastical licensure or commission and Community rule or bylaws . . . .

For violations of this section, the statute of limitations under Canon IV.19.4 (a) is ten years, and so the period will not expire until October 2014. Under Canon IV.3.3, any such violation "must be material and substantial or of clear and weighty importance to the ministry of this Church." Given the substantial emphasis on screenings for sexual abusers in 2003, however, as I detailed in this earlier post -- and given the role which Bishop Jefferts Schori herself played in promulgating new standards for her Diocese in that same year -- she could hardly assert now that her handling of Bede Parry's application was not "material", or of "clear and weighty importance to the ministry of this Church." In effect, she was substantially involved in seeing comprehensive standards for such screening put into place, and then promptly turned around and ignored those standards in order to receive Bede Parry as a priest.

Another noteworthy addition to the catalog of offenses under the new disciplinary Canons is this section of Canon IV.1:

1. (a) . . . [A] Member of the Clergy shall:. . .(f) report to the Intake Officer all matters which may constitute an Offense as defined in Canon IV.2 meeting the standards of Canon IV.3.3, except for matters disclosed to the Member of Clergy as confessor within the Rite of Reconciliation of a Penitent;

Under this new provision, therefore, any bishop, priest or deacon in the Episcopal Church (USA) who becomes aware of these facts constituting a probable violation of Canon IV.4.1 (g) by another bishop must report them to the appropriate Intake Officer for disciplinary matters concerning bishops -- and if they do not, they will have committed a violation of the Canons of their own! In this case, the Intake Officer for bishops is the Rt. Rev. F. Clayton Matthews, of the Church's Office of Pastoral Development, in North Carolina. (His physical address and "800" telephone number are at the link just given.)

Under the new Title IV, Bishop Matthews must conduct an inquiry into the charges, and must make a report to the Reference Panel of the Disciplinary Board for Bishops, which in the Presiding Bishop's case, consists of Bishop Matthews, Bishop Dorsey Henderson (the President of the Disciplinary Board), and Bishop Dean Elliott Wolfe, who, as Vice President of the House of Bishops, is designated by Canon to function in the place of the Presiding Bishop when she herself is the subject of disciplinary charges. The charges against her cannot be dismissed in the first instance, unless Bishop Wolfe agrees with Bishop Matthews to dismiss them, and the complainant is notified of that fact (so that he or she may appeal to Bishop Dorsey Henderson, the President of the Disciplinary Board).

If it appears to a majority of the Reference Panel that the charges need to be investigated further, they may refer the case to their appointed Investigator to look into the matter and deliver a full report. Based on that report, the Reference Panel then votes how to proceed further -- to dismiss the charges, to issue a "pastoral directive" to the Presiding Bishop, or to refer the charges to a Conference Panel, as I discussed in detail in this earlier post. But the main thing which Bishop Wolfe (and only Bishop Wolfe can make this call) can do is this, according to Canon IV.7.3:

If at any time the Bishop Diocesan [in this special instance, referring to Bishop Wolfe] determines that a Member of the Clergy may have committed any Offense, or that the good order, welfare or safety of the Church or any person or Community may be threatened by that member of the Clergy, the Bishop Diocesan may, without prior notice or hearing, (a) place restrictions upon the exercise of the ministry of such Member of the Clergy or (b) place such Member of the Clergy on Administrative Leave.

If Bishop Wolfe, therefore, cannot convince the Presiding Bishop privately that she should make a full and fair public statement accounting for her actions in the Bede Parry case, such that everyone could judge whether or not she followed the 2003 Constitution and Canons "meticulously", then he should proceed to inhibit her from acting as Presiding Bishop until she does so, and until the Conference or Hearing Panels of the Disciplinary Board reach a decision as to how to proceed in her case.

Much will depend on how the Presiding Bishop answers these charges against her. She has it in her power to give a full and public explanation, to make an appropriate apology, and to state just what went wrong and to accept responsibility. But unless and until she does so, she is not fit to be sitting in judgment of other bishops' alleged violations of the Constitution and Canons of ECUSA.

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